CFK v. LLL

HCMP 4738/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 4738 OF 2002

(ON AN INTENDED APPEAL FROM FCMC 7268 OF 2000)

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J U D G M E N T

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Hon Cheung JA (giving the judgment of the court):

The application

1. The applicant was the petitioner in District Court Matrimonial Causes Suit No. FCMC 7268 of 2000. By a summons dated 23 August 2002, he applied for the following relief :

“	1) to set aside or rescind the irregular allocatur and to appeal the irregular taxation decision of taxing master made on 27 June 2002 (out of time),
	2) to appeal the taxation master orders on 13 May 2002 and 6 June 2002 (out of time),
according to Order 62 rule 35 and Order 62 rule16
	3) to discharge the charging orders nisi dated 31 July 2002 and 5 August 2002."

2. The application was heard by HH Judge Bruno Chan on 12 September 2002. He dismissed the application with costs to the respondent. He also made the charging orders absolute. On 4 November 2002, the petitioner applied before the judge for leave to appeal against the order of 12 September 2002 to the Court of Appeal. He also asked for the order of 12 September 2002 to be stayed pending the result of the appeal. The application was refused.

3. The petitioner then made an application for leave to appeal against the judgment of 12 September 2002 to this Court and asked for the order of 12 September 2002 to be stayed pending the result of the appeal. The application was refused by a single judge of this Court. The petitioner now renews his application.

The history

4. The history of the proceedings in the Family Court was set out in the seventh affidavit of Anthony Michael Bough, the solicitor for the respondent. The respondent had on 18 January 2002 obtained an order from the judge to stay the divorce petition and the proceedings instituted by the petitioner. The petitioner was ordered to pay the respondent's costs incurred by the application. On 26 February 2002, Bough & Co. served a notice of appointment to tax the respondent's bill of costs.

5. At the first callover taxation hearing on 19 March 2002, the master ordered that the callover hearing be adjourned after having been informed by the petitioner that his application for leave to appeal against the judgment of 18 January 2002 was due to be heard on 20 March 2002 before the Court of Appeal.

6. The adjourned callover hearing was fixed for 30 April 2002. On that day, the master ordered the hearing of the taxation be adjourned to a date to be fixed for argument with three hours reserved. The petitioner was absent at the hearing.

7. The petitioner then took out an application to set aside the order of the master of 30 April 2002. This application was heard on 13 May 2002. It was dismissed by the master and he ordered the petitioner to pay an assessed costs of $6,000 for the application.

8. Another application was made by the petitioner to review the order of 13 May 2002. This was heard on 6 June 2002 by the master who dismissed the application and ordered the petitioner to pay an assessed costs of $3,000 for the application.

9. The respondent's bill of costs was taxed on 27 June 2002 after a hearing of arguments from the parties. On 17 July 2002, the allocatur of costs was submitted to the court for approval and was issued on 18 July 2002. A sealed copy of the allocatur was served on the petitioner on 23 July 2002.

The objections

10. In relation to the present application for leave to appeal on the costs orders, two objections were raised by the petitioner. First, he challenged the authority of Bough & Co. to act for the respondent. Second, he challenged the items of costs that appeared in the bill of costs.

Authority of the solicitor

11. The first challenge in fact was raised earlier in January 2002 when the judge was considering the respondent's application to stay the petition. On page 4 of the judgment dated 18 January 2002, the judge clearly accepted that Bough & Co. was validly appointed by the Director of Legal Aid to represent the respondent in the Family Court proceedings. The Director of Legal Aid had by a letter of 28 November 2001 addressed to the petitioner clearly recognised that Bough & Co. was validly appointed to represent the respondent in the proceedings in the Family Court.

12. Application for leave to appeal against the judgment of 18 January 2002 was refused by the Court of Appeal. The Court of Final Appeal further refused leave to appeal against the decision of the Court of Appeal. The petitioner cannot resurrect this issue again as a ground of appeal since the issue had been conclusively decided earlier.

Challenge to taxation

13. As to the challenge against the taxation of 27 June 2002, the proper procedure is laid down in Order 62 rules 33, 34 and 35 of the Rules of the District Court. The petitioner should first of all apply for a review of the taxation to the taxing master under Order 62 rules 33 and 34. If he is further dissatisfied with the decision of the taxing master on review, then he may apply to a judge in the District Court to review the taxation under Order 62 rule 35. There is no general right of appeal against an allocatur i.e. the certificate issued by the master after the taxation.

14. The review mechanism clearly has a purpose to serve. Taxation of costs may involve numerous items and various amounts of costs. They should clearly be dealt with by the taxing master and the District Judge who may review the taxation with assessors. The Court of Appeal is not the appropriate forum to go into the details of the bills of costs.

15. The petitioner had not observed this review mechanism. In the first place, he had not applied to the taxing master for a review of the taxation. He only made the application on 23 August 2002 to the judge for a review of the decision of the taxing master out of time under Order 62 rule 35. The wording of Order 62 rule 35 of the Rules of the District Court is different from that of the Rules of the High Court. Under the former, the District Court judge can only hear the review if there was a review by the taxing master first. The situation is different in the High Court where the judge of the Court of First Instance can review the taxation even if there was no review by the taxing master. As there was no jurisdiction by the judge to conduct a review, then the only order he could have made was to dismiss the application.

16. The petitioner's sixth affirmation affirmed on 7 September 2002 exhibited a document dated 8 July 2002. The title of this document is "Re : Application for leave to extend the time for applying review of taxation". The ground stated in support of the application was that the petitioner was then making an application to the Court of Final Appeal and he asked that he be given extension of time to apply for a review of the taxation "until the final result of the appeal to the Court of Final Appeal is determined". This document was not separately filed in the District Court. If the judge had no jurisdiction to hear an review, then whether an application for extension of time was made or not would be irrelevant.

Inherent jurisdiction

17. In In re Macro (Ipswich) Ltd. [1996] 1 WLR 145, Ferris J. following an earlier decision of Woolf J. in R. v. Taxing Officer, Exp. Bee-Line Railway Ltd. (decision dated 5 January 1982, reported in The Times, 11 February 1982), held that even where the review mechanism cannot be invoked because the challenge is on a decision by the taxing master on procedure, the court still maintains the power under its inherent jurisdiction to consider the challenge. This is so despite the absence of any provision for appeal. Ferris J. drew a distinction between matters relating to quantification and procedure.

18. In the present case, the petitioner's challenge to the taxation clearly comes within the review mechanism. Matters relating to the authority of Bough & Co. to represent a party, whether Bough & Co. had filed a proper bill of costs (the petitioner alleged that the bill of costs he received was a photocopy and did not have the signature or address of Bough & Co., whereas the original bill filed in court contained these particulars) and the quantifications of the items clearly were matters suitable for review. There is no room to challenge these matters under the inherent jurisdiction of the Court.

Notice of admit

19. The petitioner claimed that he had issued four "Notices to admit facts" to Bough & Co. concerning, among other things, its authority to represent the respondent. He submitted that since Bough & Co. had not denied the Notices, it was deemed to have admitted their contents.

20. Under Order 27 rule 2 of the Rules of the District Court there is no provision for "deemed admission". If no admission was made, then the facts had to be proved. Bough & Co. clearly had discharged the burden of showing it had the authority to represent the respondent.

Orders of the masters

21. In relation to the order of the master of 13 May 2002, he had earlier ordered the taxation hearing to be adjourned for argument with three hours reserved. The decision to adjourn the taxation hearing was clearly a matter of discretion. The fact that the petitioner was preparing for an application for leave to appeal to the Court of Final Appeal could not be the basis of not fixing the taxation hearing date. His decision on 13 May 2002 not to disturb the earlier order cannot be faulted.

22. As to the order of 6 June 2002, clearly the master had no further jurisdiction to review his further order on the question of the hearing date.

23. As far as the costs of $6,000 and $3,000 respectively are concerned, the taxation review mechanism would not apply to these two sums because they were made pursuant to the gross sum provision of Order 62 rule 9(4) of the Rules of the District Court. If the petitioner was not satisfied with these costs order, then his remedy would be to appeal against the costs orders. He appealed to the judge against these orders out of time. As he was unsuccessful in both applications before the master, he clearly had to be responsible for the costs of the applications. As to the quantum, he had to satisfy the judge that the amount was excessive. According to the notes of the hearing, the $6,000 costs was arrived at by the master by allowing four hour's work for the respondent's solicitor. An hourly charge of $1,500 was used. For the costs of $3,000, the master allowed two hours at $1,500 per hour for costs. The judge had not seen fit to vary the costs order. We do not regard this as an arguable point of appeal.

The charging orders

24. The first charging order of 31 July 2002 was based on the allocatur of $187,754.92. The charging order of 5 August 2002 was based on the costs orders of $6,000 and $3,000 respectively. As there was no ground to set aside the allocatur and costs orders, the judge was correct not to discharge the charging orders, and instead made them absolute on 12 September 2002.

Conclusion

25. As there is clearly no arguable point of appeal, we refuse leave to appeal.